Korea

The defendant shall pay to the plaintiff 485,00,000 won with 5% interest per annum from November 28, 2015 to May 25, 2017, and 15% interest per annum from the next day to the day of complete payment.

2. The defendant's remaining appeal is dismissed.

3. The plaintiff bears 50% of the total costs of the lawsuit and 50% of the defendant.

The defendant shall pay to the plaintiff 896,028,580 won with 20% interest per annum from November 28, 2015 to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The following facts are not disputed between the parties, or may be acknowledged by the respective descriptions of Gap evidence 1 through 11, Eul evidence 2, 3, 4, and 16, and the purport of the whole pleadings, and there is no counter-proof.

A. On February 18, 2002, ○ Construction Co., Ltd. (hereinafter referred to as ○○ Construction Co., Ltd., hereinafter referred to as '○○ Construction', and the representative director is the defendant) purchased each of the lands listed in the attached Tables 1 and 2 (hereinafter referred to as '○○ Land' in accordance with the sequences 1 and 2) and newly constructed the buildings listed in the attached Tables 1 and 2 on the land around November 13, 2003, after completing the registration of ownership transfer in the ○○ Construction.

B. On November 3, 2003, 200, ○○ Construction concluded a sales contract to sell the land of 2 to 360,000,000 won for 360,000 won for ○○○○○○, and agreed to pay the down payment of KRW 40,000 for 320,000 immediately after the contract was concluded, and accordingly, on November 12, 2003, ○○○○○○ completed the registration of ownership transfer for the said land on November 12, 2003.

On November 7, 2003, 200, 40,000 won of the down payment, and the intermediate payment of KRW 660,00,00,000, was agreed to be paid at the same time as the transfer registration of ownership on November 12, 2003, and accordingly, on November 12, 2003, the registration of ownership preservation of the above building was completed in the name of fixed ○○○○○○○○○○ on November 12, 2003.

C. On November 12, 2003, 100, 1970, 1970,000 won of the maximum debt amount (○○ District Court ○○○○○○○○○ Branch ○○○○○○○ Branch , and 96493) was established on the land and building No. 2 and building No. 3 as the debtor and the mortgagee as agricultural cooperative. The agricultural cooperative deposited 1,60,000,000 won of the loan to the agricultural cooperative account under the name of the defendant on the security of the above collateral (hereinafter “the loan”).

D. On December 16, 2003, ○ Construction sold KRW 455,000,000 for the land No. 1 to ○○○○○. However, the contract deposit amount of KRW 50,000,000 was immediately entered into immediately after the contract, and the remainder of KRW 400,000,000 was each paid on December 26, 2003, and the registration of ownership transfer was completed on the land No. 1 on December 26, 2003.

E. On December 10, 2003, YO had completed business registration with the trade name of ○○○○○○, and had operated accommodation business in the third building.

F. On February 11, 2008, 100, 200, 200 won, 3,950,000 won, 3,000 won, 450,000 won, 3,000 won, 2, and 3,000 won, 2, and 3,500 won, 2, and 3,000 won, 2, and 3,000 won, 2, and 3,000 won, 2, and 3,000 won, in lieu of 1,970,000,000 won, 2, and 3,200,00 won, and 3,000 won, 3,000 won, in lieu of 1,61,60,000 won, to ○○ Construction’s debt owed to ○○ Metropolitan City ○○.

Accordingly, the ○○○ completed the payment of the above purchase price by acting on behalf of the instant loan obligations, etc., and the ○○○ completed the registration of ownership transfer on March 19, 208 with respect to land Nos. 1, 2, and 3 buildings.

G. On May 31, 2009, the head of ○○○○ Tax Office, under the Plaintiff’s control of the Plaintiff, notified the Plaintiff of KRW 307,00,000 of transfer income tax by the due date until August 31, 2009, based on the details on the disposal of land and buildings Nos. 1, 2, and 3, and then notified the Plaintiff of KRW 164,023,310 up to June 30, 201 when the audit and inspection by the Board of Audit and Inspection confirmed that the Plaintiff filed a under-reported return of the said tax base, etc. of transfer income tax, etc., the said amount was added to KRW 164,023,310 until the due date. ○○○ was in arrears with the said capital gains tax, and thus, the Plaintiff’s tax claim against the Plaintiff’s fixed ○○○ was in total KRW 896,028,580 as indicated below as of November

H. On September 10, 2015, the Plaintiff attached the claim for indemnity against the Defendant by ○○○ upon repayment of the instant loan obligation under the name of the Defendant, and notified the Defendant of the attachment around that time.

2. Determination on the cause of the claim

A. The parties' assertion

1) The plaintiff's assertion

In selling the land Nos. 1, 2, and 3 to the ○○○, and had the ○○ act on behalf of the Defendant in lieu of payment of a part of the purchase price. As such, the Plaintiff has the right to indemnity equivalent to the above loan against the Defendant. The Plaintiff seized the above right to indemnity against the Defendant based on the tax claim against ○○○○, and filed a claim for collection thereof against the Defendant. As such, the Defendant is obliged to pay the Plaintiff the amount of KRW 896,028,580, which falls within the scope of the seizure claim, and the delay damages therefrom.

2) The defendant's assertion

In order to obtain a loan from the Agricultural Cooperative due to a shortage of purchase funds at the time of purchase of the land 1, 2, and 3 from ○○ Construction, the Defendant was given a loan under the name of her husband and her husband instead of ○○○○○○, which operated the construction of ○○○○ and a her husband with insufficient ability and credit to pay interest. In addition, the above loan was spent as a sales price for ○○ Construction, and a part of the income was carried out accommodation in the third building, and the Defendant was given a monthly transfer to the Defendant for payment of interest on the above loan. Therefore, the actual obligor of the loan of this case is ○○○, and it is merely the fact that the Defendant paid the above loan to the ○○○○○○○○, and it is merely the fact that the Defendant paid the loan to the Defendant.

B. The debtor of the instant loan

In full view of the following circumstances revealed by the above facts and evidence Nos. 8, 5 through 15, 17, 18, and 21, it is recognized that the defendant obtained the loan of this case under the name of the defendant and managed it with the business funds of ○○ Construction operated by himself, and that the defendant paid it with the business funds of ○○ Construction operated by himself, and the statement Nos. 24 and 25 are insufficient to reverse the above facts, and there is no counter-proof, it is reasonable to view the debtor of the loan of this case as the defendant.

① The loan of this case is a loan secured by real estate and is usually determined on the basis of the value of the collateral rather than the debtor’s occupation and career. Ma○○ was planned to operate a lodging business at the time of the above loan, and actually registered with the name of ○○○○○○○○, and engaged in a lodging business at the third building, and thus, it was not necessary for Ma○○ to obtain the loan of this case under the name of another person.

② The details of the loan of this case after being deposited into the account in the name of the Defendant are as follows (see subparagraph (5). Among the expenditure, since there are many items that are not directly related to the payment of the purchase price for ○○ Construction, such as the repayment of the bill loan to ○○○ Housing, or the repayment of the loan to ○○○○ and ○○○○○, such as the Defendant’s Kim○, and the repayment of the loan to ○○○○, it seems that ○○, rather than the management of the loan of this case, the Defendant decided whether to pay the loan.

③ The Defendant did not pay the purchase price for ○○ Construction with the instant loan on the basis of the agreed date of payment, but only paid a part of the said purchase price, regardless of the agreed date of payment (see, e.g., Supreme Court Decision 200Do327, Mar. 2, 200). Therefore, it is difficult to deem that the purpose of the instant loan was solely to prepare the purchase price for ○○ Construction.

④ In light of the fact that ○○○ deposited the interest amount equivalent to the loan of this case in the Defendant’s account from May 2004 to March 2008, 2008, the Defendant asserted that ○○○ and the Defendant have been paying the interest on the loan of this case. However, in light of the fact that ○○ and the Defendant were in a family relationship, ○○○ and ○○ Construction was under tax investigation from November 2005, and ○○ Construction was subject to high-amount corporate tax collection, etc., it is difficult to recognize that ○○ was bearing the interest on the loan of this case solely on the ground that ○○ had regularly transferred part of the profits from lodging business from the third building to the Defendant’s agricultural bank account.

C. The obligor of the loan of this case

The ○○○○○ filed a lawsuit against the ○○○ Construction on the ground that the sales contract between the ○○ Construction and the ○○ Construction and the 3rd buildings was concluded and completed the registration of ownership transfer or the registration of ownership preservation for each of the above real estate on the grounds of this contract. The ○○○○○ has registered the business under the trade name of ○○○○○ Construction and operated accommodation business on the 3rd building. The Plaintiff’s ○○○○○ Construction and caused the purchaser of the 1, 2 and the 3rd building to repay the debt to the ○○○○○ Construction with the 1, 3rd Building on the said real estate as collateral, thereby having the right to reimbursement equivalent to the above debt amount. The ○○○○ Construction and the 3rd Building’s 2015 and the 20137th 2016 judgment on April 21, 2016, which became final and conclusive in lieu of the payment of the purchase price of each of the above real estate.

D. Defendant’s obligation of reimbursement and collection performance

As seen earlier, the Defendant is deemed to have performed the obligation of the above loan by subrogation of the Defendant, who is the obligor of the instant loan, barring any special circumstance, and thus, barring any special circumstance, the Defendant is obligated to claim reimbursement of the amount equivalent to the repayment amount of the loan to ○○○. Since the Plaintiff seized the claim for reimbursement based on the tax claim against ○○○○, and sought collection from the Defendant, the Defendant is obligated to pay to the Plaintiff the amount equivalent to the amount of the Plaintiff’s seizure and the delayed payment equivalent to the amount of the above claim.

3. Judgment on the defendant's counterclaim

A. The defendant's assertion

Even if the actual debtor of the loan of this case is the defendant, ○○ requested the defendant to repay the purchase price debt to ○○○ Construction instead of the purchase price, and the defendant paid the amount of the loan to ○○○○ upon the above request of ○○○○○, in lieu of the purchase price for ○○ Construction. Thus, ○○ does not have a right to indemnity against the defendant.

B. Determination

When a person who has pledged his/her property to secure another's obligation has the right to indemnity against the debtor, and the person who has pledged his/her property to secure another's obligation has a legitimate interest in repaying his/her obligation, the person who has pledged his/her property to secure another's obligation may exercise his/her right to the creditor's claim and the right to collateral. However, since the person who has pledged his/her property to secure another's obligation may exercise the same right to the extent of reimbursement by means of his/her own right, the person who has pledged his/her property to secure another's obligation shall not exercise his/her right to the creditor's claim and collateral (see, e.g., Supreme Court Decision 2013Da80429, Apr. 30,

According to each of the statements and arguments stated in Gap's evidence Nos. 5 through 27 and the purport of the whole pleadings, it is recognized that the defendant completed the payment of the amount as stated in the following table from November 12, 2003 to December 26 of the same year, and fixed ○○ paid the same amount as stated in the "regular ○○○○" in the same table, to ○○○ Construction, thereby paying the same amount as stated in the "regular ○○○○○" in each of the above table (=360,000,000 + 1,210,000,000 + + 45,000,000 won).

According to the above facts, after receiving the loan of this case from the defendant, the defendant paid 1,115,00,000 won out of the purchase price for ○○○ Construction as part of the defendant's funds or the loan of this case, and paid 1,115,00,000 won out of the purchase price for ○○○○○○○, thereby having a opposing claim equivalent to the above subrogated amount. Thus, from among the right to indemnity equivalent to 1,60,00,000 won of the loan of this case which ○○○○ held against the defendant, the amount equivalent to the above opposing claim amount of 1,115,00,000 won cannot be exercised, and the remaining amount of 485,00,000 won can not be exercised, and therefore, the defendant's above assertion is justified within the scope of recognition, and the remainder is not justified.

4. Conclusion

The defendant is obligated to pay the plaintiff, who is the person entitled to the seizure and collection of ○○○, the amount of KRW 485,00,000 as well as damages for delay calculated at the rate of 5% per annum under the Civil Act from November 28, 2015 to May 25, 2017, which is the day following the day when the delivery of the complaint of this case, which can be seen as the plaintiff's claim for payment, and the defendant's claim for payment of the above amount of KRW 485,00,00,00, and the amount of damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim

Therefore, the part against the defendant in excess of the above cited amount in the judgment of the court of first instance is unfair, and it is so revoked and the plaintiff's claim corresponding to the revoked part is dismissed. Since the remaining parts in the judgment of the court of first instance are justified with the conclusion, the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.